Trademark functions in practice: the Opel-Blitz-II case


Jens K├╝nzel

The decision in Opel-Blitz II, handed down by the Federal Supreme Court of Germany in January 2010, concerns the use of a trademark of a well-known German automobile manufacturer on miniature replica toy cars.

The decision ends a dispute that began in 2004. The trademark of the plaintiff automobile manufacturer, a horizontal flash whose ends cross the boundaries of a circle, was used by the defendant on a miniature version of the plaintiff’s original car model. The car toy’s packaging also showed the name of the manufacturer ‘Autec’ on its back, and the toy’s manual showed the manufacturer’s trademark ‘Cartronic®’.

The plaintiff attacked the use of the ‘flash’ on the car toy as an infringement of its trademark, which covered ‘automobiles’ as well as ‘toys’. The claim was based first on an identical infringement of the trademark in so far as it covered toys. A second line of argument was that the trademark was a well-known trademark for automobiles, and that its use in the context of a miniature car model made unfair use of its reputation.

The first instance court referred the case to the European Court of Justice, which issued a preliminary ruling in 2007. The ECJ answered the first instance court’s questions as follows:

Opel-Blitz II, trademark infringement